Visinko and Repatriation Commission (Veterans' entitlements)

[2017] AATA 607

Visinko and Repatriation Commission (Veterans' entitlements) [2017] AATA 607 (5 May 2017)

Division:Veterans' Appeals Division

File Number:           2015/2956

Re:Marino Visinko

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:5 May 2017

Place:Sydney

The Tribunal sets aside the decision by the Veterans’ Review Board dated 5 March 2015 that Marino Visinko does not suffer from generalised anxiety disorder. The Tribunal decides in substitution that Marino Visinko does suffer from generalised anxiety disorder, which was war-caused as defined in section 9 of the Veteran’s Entitlement Act 1986 (Cth). The Tribunal remits the matter to the Repatriation Commission for reconsideration of the rate (if any) at which Marino Visinko’s pension is to be paid.

..............................[sgd]..........................................

Dr L Bygrave, Member

CATCHWORDS

VETERANS’ AFFAIRS – entitlements – generalised anxiety disorder – whether applicant suffers from a generalised anxiety disorder – whether there is a causal connection between applicant’s generalised anxiety disorder and operational war service – decision set aside and remitted

LEGISLATION

Veterans Entitlements Act 1986 (Cth), ss 9(1), 120, 120A

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (fifth edition), 2013

Statement of Principles concerning Anxiety Disorder (No. 102 of 2014), cls 3, 9

REASONS FOR DECISION

Dr L Bygrave, Member

5 May 2017

INTRODUCTION

1. The applicant, Mr Marino Visinko, was born in 1948 and served in the Australian Army from 18 August 1968 to 17 August 1988.

2. For the purposes of the Veterans Entitlements Act 1986 (Cth) (the Act), Mr Visinko had operational service in Vietnam between 7 October 1970 and 7 October 1971, and eligible service from 7 December 1972 until his discharge in 1988.

3. On 15 June 2015, Mr Visinko applied to the Administrative Appeals Tribunal for a review of part of a decision by the Veteran’s Review Board made on 5 March 2015. This part of the decision, which is set out at paragraph two of the decision, refused Mr Visinko’s claim in relation to generalised anxiety disorder and depressive disorder on the basis that he did not suffer from the conditions in accordance with the Act. Relevantly, this decision by the Veteran’s Review Board accepted Mr Visinko’s conditions of alcohol dependence and hypertension were war-caused.

4. The matter was heard in Sydney on 7 and 8 March 2017. Mr Visinko attended the hearing in person and had legal representation.

   ISSUES

5. At the Tribunal hearing, Mr Visinko’s legal representative withdrew his claim for depressive disorder. Consequently, the issues for determination by the Tribunal are:

   (a)whether Mr Visinko suffers from a generalised anxiety disorder; and if so,

   (b)whether his generalised anxiety disorder was caused by his operational war service pursuant to section 9(1) of the Act.

   RELEVANT LEGISLATION

6. In accordance with section 120A of the Act, the relevant Statement of Principles (SOP) in this matter is Anxiety Disorder (No. 102 of 2014).

7. The standard of proof to be applied in this matter is set out in sections 120(1) and 120(3) of the Act. This means the Tribunal is required to find that Mr Visinko’s generalised anxiety disorder was war-caused, provided that there is a ‘reasonable hypothesis’ of a connection between his service and incapacity, which is not disproved beyond reasonable doubt.

   EVIDENCE

8. Mr Visinko and his wife, Mrs Janice Visinko, provided written statements and gave oral evidence at the Tribunal hearing.

9. The Tribunal also considered medical evidence from Dr C Cleary (General Practitioner), Dr A Pusic (Consultant Psychiatrist), Ms R Dayman (Counselling Psychologist), Dr S Chaturvedi (Consultant Psychiatrist), Dr G Edwards (Consultant Psychiatrist), Dr S Smith (Consultant Psychiatrist) and Dr A Dinnen (Consultant Psychiatrist).

10. This evidence is set out below.

    Evidence – Mr Marino Visinko

11. Mr Visinko served as an army pay clerk in Vietnam. His experiences in Vietnam included being subjected to a life-threatening event in which he was physically assaulted by ‘cowboys’, viewing corpses or critically injured casualties, being mortared, and being abused on his return to Australia.[1] Mr Visinko’s evidence is confirmed by a Writeway research report in which Major John Tilbrook concluded:

    …the veteran was exposed to both Category 1a and 2a stressor episodes that should be accepted by the AAT as being causal link to his diagnosed medical conditions of Depressive Disorder and/or General Anxiety Disorder.[2]

    [1] Exhibits T1-T18, pp 116-127; A2.

    [2] Exhibit A1, p 50.

12. At the Tribunal hearing, Mr Visinko spoke about his experiences in Vietnam. He observed the long-term effect these events have had on him and noted he suffers from symptoms including excessive anxiety and difficulty with controlling worry, restlessness and irritability, difficulty concentrating and disturbed sleep, significant distress and impairment in social functioning. He acknowledged that he was in denial about his poor behaviour, particularly his anger, until recently. His behaviour has had a detrimental impact on personal relationships and social engagement; he removes himself from social situations, and considers his sister and a friend from the army reserve as his only friends.

13. Mr Visinko stated that he used alcohol to deal with his anxiety and stress. While he served in Vietnam, he consumed 10-15 drinks per day. This decreased to 5-6 drinks per day when he returned from Vietnam until he was discharged from the army in 1988. He continued to consume two bottles of wine per night until his bypass surgery in 2005. From 2006, he again consumed two bottles of wine per day until 2011 when his wife gave him an ultimatum to reduce his consumption of alcohol. He now only drinks several glasses of wine per week.

14. Mr Visinko observed that on his return from Vietnam, he compartmentalised his experiences and used alcohol to deal with his anxiety and stress. He noted that his bypass surgery in 2005, his experiences at work from about 2008 to 2013, and participating in proceedings with the Department of Veteran’s Affairs from 2008 have exacerbated his anxiety. He also stated that reading documents such as the Writeway research report have caused his ‘memories [from Vietnam] to come screaming back’.

    Evidence – Mrs Janice Visinko

15. Mrs Visinko provided a written statement received by the Tribunal on 3 June 2016 and gave evidence at the Tribunal hearing.

16. Mrs Visinko told the Tribunal she met Mr Visinko six months after he returned to Australia from Vietnam. They were married in 1973. Mrs Visinko corroborated her husband’s evidence that he suffered from disturbed sleep and nightmares, and observed that his poor anger management and irritability has adversely impacted on his relationships, including with several of their children. She noted that her husband wakes violently unless shaken by his feet and cannot sit with his back to a door due to his experiences in Vietnam.

17. Mrs Visinko told the Tribunal that her husband had always been terse and had angry outbursts over trivial matters but it has become worse since he started this process with the Department of Veteran’s Affairs in 2008.

    Medical evidence

18. Medical reports by Dr Cleary stated Mr Visinko revealed symptoms of anxiety and depression in December 2008, with a date of onset being 1972.[3] The basis for diagnosis was a long history of anxiety, low mood and poor anger management.

    [3] Exhibits T1-T5, T1-T8.

19. Dr Pusic has been Mr Visinko’s treating psychiatrist since 2010. In reports dated 17 August 2011, 10 April 2012, 17 August 2012, 20 August 2012 and 19 November 2014, Dr Pusic opined that Mr Visinko experienced category 1A and 1B stressors during his service in Vietnam as defined in the SOP for generalised anxiety disorder, and diagnosed Mr Visinko as suffering from generalised anxiety disorder with the date of onset being his service in Vietnam.

20. Mr Visinko has also attended regular appointments with Ms Dayman (Counselling Psychologist) from 2012. In a report generated on 17 September 2014, Ms Dayman commented on Mr Visinko’s anxiety, mood and panic attacks, and his long-term history of poor anger management, which affected both his personal and workplace relationships.

21. As part of the Department of Veterans Affairs’ process of deciding Mr Visinko’s eligibility for his claims, he attended appointments with the following consultant psychiatrists: Dr Chaturvedi, Dr Edwards, Dr Smith and Dr Dinnen.

22. Dr Chaturvedi provided a two-page report dated 13 March 2009, which focused on Mr Visinko’s anger issues and contained no reference to his war service. I place limited weight on this report given it does not discuss or acknowledge Mr Visinko’s operational service.

23. Dr Edwards’ report dated 28 June 2014 diagnosed Mr Visinko with chronic alcohol dependence in partial remission. He did not find any significant evidence of Mr Visinko having a major depressive disorder or a generalised anxiety disorder. Dr Edwards stated that Mr Visinko was a very heavy alcohol user during Vietnam and this continued in his civilian life until recent years. He found:

    …on the balance of probabilities, the marked increase use of alcohol during his Vietnam experience can be attributed to a material degree of an aggravation by war service.[4]

    [4] Exhibit T1-T29, p 261.

24. Relevantly, Dr Edwards also reported Mr Visinko suffered mental symptoms of aggression and irritability, poor sleep, anxiety, and feeling flustered and panicked; and noted he often becomes emotional, crying and despondent since his bypass surgery in 2005.

25. Dr Smith provided written reports dated 21 March 2013, 20 June 2013, 8 November 2013 and 13 September 2016, and gave evidence at the Tribunal hearing. Dr Smith concluded Mr Visinko displayed evidence of chronic alcohol dependence that did not relate directly to his military service. Dr Smith deemed Mr Visinko’s ‘irritability and sleep disturbances, restlessness, agitation and irritability to the point of anger, on a balance of medical probability, as related to excessive alcohol consumption.’[5]

    [5] Exhibit R1, p 9.

26. Dr Dinnen provided written reports dated 22 March 2016 and 9 August 2016, and gave evidence at the Tribunal hearing. In his report on 22 March 2016, Dr Dinnen noted that Mr Visinko had been very anxious and experienced mood swings featuring anger, irritability and sadness since he served in Vietnam; he concluded that Mr Visinko’s ‘psychiatric conditions – depressive disorder and/or generalised anxiety disorder were war caused.’[6] Dr Dinnen opined on 9 August 2016 that Mr Visinko shows symptoms of generalised anxiety disorder, specifically:

    Excessive anxiety that is difficult to control with irritability and sleep disturbance causing distress and impairment in social areas of functioning within the family for example but not attributable to substance abuse.[7]

    [6] Exhibit A4 (2/3/2016), p 7.

    [7] Exhibit A4 (9/8/2016), p 2.

27. At the Tribunal hearing, Dr Dinnen confirmed that Mr Visinko satisfies the DSM-5 diagnostic criteria for generalised anxiety disorder and noted that anxiety symptoms commonly occur in substance intoxication and substance withdrawal. He opined that Mr Visinko had used alcohol to control his symptoms of anxiety and stress since his service in Vietnam, which explained why Mr Visinko’s symptoms of generalised anxiety disorder increased when he reduced his alcohol consumption in 2011.

    Findings

28. The medical evidence is consistent in recognising Mr Visinko has experienced symptoms of irritability, anger, sleep disturbance and emotional distress since his service in Vietnam. The issue is whether these symptoms are due to Mr Visinko’s excessive long-term alcohol consumption or whether these symptoms are because Mr Visinko has a generalised anxiety disorder.

29. The medical evidence is also consistent in diagnosing Mr Visinko with an alcohol dependence condition. The Veteran’s Review Board, in its decision on 5 March 2015, affirmed this condition was war-caused as defined in section 9 of the Act. Further, the medical evidence of Dr Cleary, Dr Pusic and Dr Dinnen concludes that Mr Visinko has generalised anxiety disorder in addition to his alcohol dependence condition. Notably, a diagnosis of generalised anxiety disorder is not inconsistent with the symptoms of alcohol dependence; that is, Mr Visinko can be suffering from both an alcohol dependence condition and generalised anxiety disorder.

30. Dr Dinnen’s comprehensive and clear explanation of Mr Visinko’s chronology of alcohol consumption and symptoms of anxiety is persuasive. In particular, relying on DSM-5, Dr Dinnen reasoned Mr Visinko meets the diagnostic criteria for generalised anxiety disorder and noted Mr Visinko relied on alcohol to alleviate his symptoms of stress and anxiety both during and after his operational service in Vietnam. Consistent with DSM-5, Mr Visinko’s symptoms of irritability, anger, sleep disturbance and emotional distress have increased since 2011 when he reduced his alcohol consumption.

    CONSIDERATION

    Issue 1: Does Mr Visinko suffer from generalised anxiety disorder?

31. The symptoms experienced by Mr Visinko are consistent with SOP No. 102 of 2014 criteria at clause 3(b). These symptoms include excessive anxiety and worry, difficulty concentrating, irritability and sleep disturbance, which cause significant stress and impairment in Mr Visinko’s social functioning. These symptoms have continued despite Mr Visinko reducing his alcohol consumption in 2011 and therefore are not attributable to the physiological effects of a substance.

32. On the basis of the evidence before the Tribunal, I am satisfied that Mr Visinko suffers from generalised anxiety disorder with onset from the Vietnam War.

    Issue 2: Was Mr Visinko’s generalised anxiety disorder caused by his operational war service?

33. During his operational service in Vietnam, Mr Visinko was exposed to Category 1A stressors (life-threatening incidents) and experienced Category 1B stressors (viewing corpses and causalities) as defined in clause 9 of SOP No. 102 of 2014. He therefore satisfies the factors in clauses 6(a) (ii) and (iii) of SOP No. 102 of 2014 that there is a reasonable hypothesis raised connecting his anxiety disorder with the circumstances of his operational service.

34. I find that Mr Visinko’s generalised anxiety disorder was caused by his operational war service in Vietnam.

    DECISION

35. The Tribunal sets aside the decision by the Veterans’ Review Board dated 5 March 2015 that Mr Visinko does not suffer from generalised anxiety disorder. The Tribunal decides in substitution that Mr Visinko does suffer from generalised anxiety disorder, which was war-caused as defined in section 9 of the Veteran’s Entitlement Act 1986 (Cth). The Tribunal remits the matter to the Repatriation Commission for reconsideration of the rate (if any) at which Mr Visinko’s pension is to be paid.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...........................[sgd].............................................

Associate

Dated: 5 May 2017

Dates of hearing:	7 and 8 March 2017
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Applicant:	Kemp & Co. Lawyers
Solicitors for the Respondent:	Ms L Buchanan